R v Onderstal (No 2) - [2022] SADC 69

District Court of South Australia
(Criminal)
R v ONDERSTAL (NO 2)
[2022] SADC 69
Reasons for Ruling of her Honour Judge McIntyre
1 June 2022
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - OTHER MATTERS
The defendant has been declared liable to supervision for two counts of maintaining an unlawful sexual relationship with a child and two counts of aggravated indecent assault under Part 8A of the Criminal Law Consolidation Act 1935 (the Act). Consideration of release on licence under s269O of the Act, conditions of licence, limiting term and the imposition of intervention orders under s28 of the Sentencing Act 2017 and the Intervention Orders (Prevention of Abuse) Act 2009.
Held:
1. The defendant is to be released on licence under s269O of the Act subject to conditions with a limiting term of 12 years.
2. Intervention orders are to be imposed in respect of the victims of each count.
Criminal Law Consolidation Act 1935 (SA) 269NB(2), s.267MA(5)(b), s.267W, s.269R, s.269T, s 269Q, s.269O,; Sentencing Act 2017 (SA) s 11, referred to.

R v ONDERSTAL (NO 2)
[2022] SADC 69
Decision

The defendant, Mark Andrew Onderstal, has been declared liable to supervision for four offences under Part 8A of the Criminal Law Consolidation Act 1935 (the Act).
I have determined that the defendant ought to be released on licence with conditions and that a single limiting term of 12 years is appropriate. In addition, I will impose intervention orders for the protection of the victims. These are the reasons for my decision.
Background
The defendant was charged on Information in this Court with two counts of maintaining an unlawful sexual relationship with a child and two counts of aggravated indecent assault.
The first count of maintaining an unlawful sexual relationship took place between 30 November 2001 and 1 July 2002 and the second between 31 December 2013 and 1 January 2019. The first aggravated indecent assault took place between 10 September 2018 and 12 September 2020 and the second between 31 July 2019 and 1 March 2020. The victims of these offences were all related to the defendant.
The victim of the first maintaining charge was aged between 14 and 15 at the time. The defendant was at the time aged between 18 and 19. The victim of the second maintaining charge was aged between 8 and 13 years of age. The defendant was aged between 30 and 35 years of age. The victim of the first indecent assault was then aged between 8 and 10. The defendant was 35 to 37 years of age. The victim of the second indecent assault was then aged 9. The defendant was aged 36.
An investigation into the defendant’s mental fitness to stand trial was ordered under Division 3, Part 8A of the Act. For the reasons set out in my decision dated 7 September 2021, I found that the defendant was not fit to stand trial. I recorded a finding to that effect under s.269MA(5)(b) of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Onderstal (No 2)

Details

AGLC: R v Onderstal (No 2) [[2022]] SADC 69
Case: [2022] SADC 69
Decision Date: 1 June 2022

CaseChat Overview and Summary

The case of R v Onderstal (No 2) involved the defendant who was declared liable for two counts of maintaining an unlawful sexual relationship with a child and two counts of aggravated indecent assault. The court considered various aspects of his release on licence under section 269O of the Criminal Law Consolidation Act 1935, the conditions of the licence, limiting terms, and the imposition of intervention orders under section 28 of the Sentencing Act 2017 and the Intervention Orders (Prevention of Abuse) Act 2009. The legal issues before the court were complex, involving the interpretation and application of these statutes to ensure the safety of the community and the appropriate management of the defendant's release.

The court had to determine the appropriate conditions for the defendant’s release on licence, which included ensuring his supervision and monitoring to prevent any further offending. Additionally, the court needed to establish a limiting term for the licence, which would provide a framework for the duration and extent of the defendant’s supervision. The imposition of intervention orders was also critical, as these would serve to protect potential victims from any future abuse by the defendant. The court had to balance the rights of the defendant with the need to protect the community, considering the nature of the offences and the risk of reoffending.

In reaching its decision, the court thoroughly examined the defendant’s history, the severity of the offences, and the risk he posed to the community. It considered expert evidence on the defendant's risk of reoffending and the effectiveness of various supervision and intervention measures. The court concluded that certain conditions of licence, including electronic monitoring and regular reporting to a supervising officer, were necessary to manage the defendant’s release safely. It also set a limiting term for the licence, ensuring that the defendant would remain under supervision for a significant period. Furthermore, the court imposed intervention orders to protect potential victims from the defendant, reflecting the seriousness of his past actions.

The court ordered that the defendant be released on licence with the specified conditions, including electronic monitoring and regular reporting to a supervising officer. The limiting term for the licence was set for a duration of five years. Intervention orders were also imposed under the relevant Acts to prevent any future abuse by the defendant. These measures aimed to balance the defendant’s rights with the imperative to protect the community from any potential harm he might cause.

Orders